As an employer, are you aware of your responsibilities under the Pregnant Workers Fairness Act? The PWFA is a relatively new law — it went into effect in June 2023, and the EEOC’s final regulation applying the statute became effective this past summer.

The law, which applies to private employers with 15 or more employees and some public sector employers, requires employers to provide reasonable accommodations for an employee’s or a job applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions, unless providing the accommodation will constitute an undue hardship for the employer. The PWFA only covers accommodations. Other laws, such as Title VII and some state laws, prohibit discrimination against pregnant workers.

The statute defines a known limitation as an impediment or problem that the employee or applicant (or their representative) has communicated to the employer. Limitations can be relatively minor and episodic, such as occasional morning sickness or migraines, or they can be something more serious, such as the need to go on extended bed rest. Some limitations can be in the form of physical restrictions, such as an inability to lift heavy objects or limited mobility. Limitations can also include a need to attend more frequent medical appointments. If a limitation is related to, affected by or arises out of pregnancy, childbirth or a related medical condition, it is covered by the law. When a pregnant employee or applicant asks for an accommodation, the employer must engage in an interactive process with the employee or applicant to determine an appropriate reasonable accommodation.

Depending upon the circumstances, accommodations under the law can include things like additional or longer breaks to drink water, eat or use the restroom; providing seating at a workstation; modifying uniform or dress code requirements; limitations on lifting; adjustment of work schedules; remote work; and temporary leaves of absence. Importantly, a reasonable accommodation under the PWFA might include the temporary suspension of one or more essential job functions. This is a significant difference between the PWFA and the ADA, which does not require employers to eliminate essential job functions as an accommodation.

It is crucially important that the employer and employee engage in the interactive process in good faith to arrive at an accommodation, because an employer cannot require an employee to accept an accommodation that is not arrived at through the interactive process, and an employer cannot require an employee to take an unpaid leave as an accommodation if another accommodation that would allow the employee to keep working is available. In order to deny a particular accommodation, an employer will need to demonstrate that it would impose an undue hardship on the employer, meaning that it would impose significant difficulty or expense on the employer to provide the accommodation.

Under some limited circumstances, an employer can request that the employee provide information from a health care provider about their pregnancy-related limitation and the need for accommodation. According to the EEOC, it is not reasonable for an employer to require documentation when the limitation and need for accommodation is already known or is obvious. Likewise, it would not be appropriate for employers to ask for documentation to show the need for relatively minor, common-sense accommodations like more frequent bathroom breaks, seating, occasional tardiness due to morning sickness, or the need for a nursing mother to take time to express breast milk. For limitations that are less obvious, or when the requested accommodation is more involved, or when its connection to the pregnancy-related limitation is less clear, it may be appropriate to ask for documentation from a health care provider.

In addition to the federal PWFA, pregnant workers in the Granite State are protected by New Hampshire’s anti-discrimination law, RSA 354-A:7. Among other things, that law prohibits discrimination on the basis of sex, which includes pregnancy and medical conditions which result from pregnancy. The law makes it illegal for an employer with six or more employees to refuse to hire an applicant because of their pregnancy, or to fire an employee or otherwise discriminate against them because they are pregnant.

Additionally, the law requires New Hampshire employers to permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. For all other employment-related purposes, the New Hampshire statute considers pregnancy, childbirth and related medical conditions to be temporary disabilities, and requires employers to treat pregnant workers and new mothers in the same way that other temporarily disabled employees are treated. For example, if by policy or practice an employer would allow an employee with a temporary back injury to be relieved of lifting heavy objects, the employer must make the same kind of accommodation for a pregnant worker who needs it.

Employers are encouraged to read the EEOC’s guidance (available on the Commission’s website) about the PWFA, and review their handbook policies regarding protections for pregnant workers to make sure they are up to date.

Adam Hamel is a director in McLane Middleton’s Litigation Department and vice chair of the firm’s Employment Law Group. He can be reached at adam.hamel@mclane.com.

Pregnant workers in the Granite State are protected by New Hampshire’s antidiscrimination law.